From a strictly legal perspective, the Centre?s decision to use the ordinance route to hike FDI cap in the insurance sector to 49 per cent and facilitate the e-auction of coal blocks is impossible to justify. As the Supreme Court has pointed out, the power to issue an ordinance is essentially an emergency power to be used only in extraordinary situations. If employed otherwise, it a naked subversion of Parliament and a violation of the constitutional structure, under which it is the job of the legislature to make laws and the task of the executive to implement them. But if appeals to constitutional propriety fall on deaf ears, it is because just about every government in the past ? starting with Jawaharlal Nehru?s, which nationalised the life insurance business through an ordinance ? has adopted the ordinance route. According to PRS Legislative Research, since the first Lok Sabha in 1952, as many as 643 ordinances have been promulgated, of which the current NDA government already accounts for six in its first six months in office.
Just before the 2014 general election was announced, the UPA government had issued a slew of anti-corruption ordinances in a desperate attempt to repair its dishonest image and appear as if it was serious in cracking down on graft. The ordinances on coal and insurance are different, inasmuch as they are not, as the anti-corruption ordinances were, a cynical political exercise. There are economic legislations which are required to be pushed through if India is going to improve its growth and foreign investment numbers, crucial for regaining the lost lustre of the India Growth Story. In a political environment in which the functioning of Parliament is getting increasingly stalled by an aggressive and partisan Opposition that seems to care less and less about the agenda before the two Houses, one cannot help but wonder what options exist when there is a clear intent to prevent legislative business from being transacted. In such a climate, can the nation afford to wait indefinitely for Parliament to take up its agenda, as Finance Minister Arun Jaitley wondered? By implication, is there a case for rule by ordinance even in situations where the Supreme Court?s ?emergency? criterion is not met?
As an opposition party, the BJP has been guilty of blocking Parliament, and so it is only reaping what it has sown. But in this case, the Opposition must bear most of the blame in forcing the Centre to bypass Parliament and take the ordinance route. The Insurance Bill, for instance, has been discussed extensively, vetted by the all-party Standing Committee of Parliament; the Coal ordinance is a re-promulgation. The Opposition has enough democratic options on hand ? including trying to defeat the Bill on the floor of the House ? if it has deep-seated objections. By simply using stalling tactics, it has demonstrated that it places its immediate political objectives above any national economic agenda, or indeed democratic governance itself.